The Death Penalty

I was raised Catholic, and therefore learned to regard capital punishment as immoral, on the Church’s “life is sacred” and “no human has the moral authority to take a life” grounds.

Later, when I started thinking things through for myself — as opposed to rationalizing what I had been raised to believe — I became a fairly strong supporter of the death penalty, in principle if not always in practice. By that I mean that I favored the arguments in support of the idea that the worst kind of criminal deserves the “ultimate” punishment, and that part of the legitimate function of government is to carry out the rectification of injustices, with punishment being proportionate to the crime; but that since I was simultaneously arriving at the conclusion that in order to have the moral authority to carry out any of the duties of a state, a government must itself be morally legitimate, and that few if any of today’s actual governments are morally legitimate (i.e., just), it follows that the practical enforcement of the death penalty may be unjust in most real nations of our time.

Today, I ride the fence on the issue, or rather I find myself inclined to see the advantages of whichever side I am not defending at the moment. Still, I probably situate myself on the “pro” side of the fence more often than on the “anti” side, notwithstanding my permanent reservations about the practical implementation of such an ultimate punishment by states, such as our modern progressive authoritarian states, which have forfeited their moral authority as enforcers of anything, let alone anything so irreversible as the death penalty.

The strongest case against capital punishment is probably the cut and dried position that no human being has the moral authority or right to take the life of another human being. The most common iteration of this argument from a religious point of view would be the “life is sacred” argument, according to which only God has the authority to determine when a life has reached its proper end point. This, in fact, is the same basic premise underlying the religious objections to both abortion and euthanasia, which leads the Catholic Church, along with many other faiths and individuals, to regard opposition to the death penalty as an inescapable counterpart to those other two forms of killing, in effect regarding them as morally equivalent, and therefore equally morally objectionable.

For my part, I have never quite been sanguine about the (moral) equation of the death penalty with abortion or euthanasia — both of the latter being forms of killing that I regard as entirely insupportable and immoral. But what’s the difference? As a good friend recently put it to me, and as my Catholic schooling put it to me as a child, “killing is killing.” So how is the death penalty — the intentional taking of a human life — essentially different from the others, the criminal guilt of the victim notwithstanding?

In my incurable Aristotelianism, however, I am always inclined to come down to the conclusion that context matters, and therefore I am never comfortable with arguments along the lines of “Killing is killing.” No, I want to say, it isn’t.

To begin with, unless one is a complete and consistent pacifist, one presumably believes that a human being does in fact have the moral authority to kill another in certain circumstances, such as in self-defense, which may be broadened to include the defense of the lives of other innocent victims of life-threatening aggression. And once one accepts the principle that there are some conditions in which taking a human life may be justified, in the sense of being just, the issue is no longer so cut and dried as merely saying “Taking a life is always wrong,” or “Killing is killing.”

Now the next question is, “Why do we have governments?” The primary function of a legitimate and just government, it seems to me, is to pass and enforce laws that conform to the natural law, that is, to absorb the functions of practical justice that, in pre-civilized nature, would rightly fall to individuals. One of the premises of such natural justice is that if there are natural rights, then there are necessarily corresponding natural responsibilities, most specifically the responsibility not to intentionally undermine the natural rights of others.

The standard way of expressing this would be something along these lines: If you deliberately violate another man’s right to life or self-preservation, then you forfeit your own. Such a formulation is not merely a rhetorical convenience without logical substance, but seems to comport with the most basic principles of justice, which are balance and proportionality, i.e., that you get what you deserve. If you demonstrate a complete disregard for the sacredness of the life of another person — “complete” is important here, and is the reason we do not usually allow the death penalty for second degree murder, for example — then what moral grounds do you have for asserting your own right to life against anyone who would take yours in retribution? In such cases, it seems to meet the standard of what I have dubbed “natural justice” that the scales, having been tilted so severely by the weight of an intentional and premeditated violation of the right to life, should be balanced by an equally severe weight on the other side, which is to say the death of the violator.

As for the secondary question of whether it is legitimate to assign that natural moral authority, if it exists, to a government, the issue becomes dicey, partly because, as I noted above, a government must have moral standing in general as a properly limited and justly functioning repository of the people’s natural rights to retribution, in order to assert the moral authority to exact the so-called ultimate punishment of the death penalty. (I say “so-called” because it is not inherently obvious to me that death is truly the ultimate punishment, for reasons similar to the reasons I would offer against defining murder itself as the ultimate violation of life. Actually, I think there are more serious violations of life than mere murder, because I believe souls are more important than bodies. This is why in these secular materialist days of ours even people who favor the death penalty for child murderers, for example, might be squeamish about the death penalty for people convicted of treason or extreme instances of fraud; whereas for me the latter may be the stronger case.)

The same great friend who recently presented me with the “killing is killing” argument also added the equally forceful but, I think, even more complicated point that granting the state — any state — the authority to take a human life will inevitably foster a social climate in which government killing per se is gradually normalized, such that, to use our modern devolution as an example, the institution of the death penalty establishes a principle that finally makes the euphemized murder of unhealthy babies and infirm seniors seem (“euthanasia”) palatable, or even, eventually, agreeable.

As for this question of the moral “slippery slope” of establishing a climate of state killing as a normal procedure, I agree that could be a problem, but it does not necessarily follow from the fact that we permit the state to carry out narrowly limited killings as an enforcement of the rule of law that we have to slide into allowing the state to kill with increasing arbitrariness, for an ever-expanding set of reasons. If that were so, then I don’t see how we could continue even to grant governments the power even to make laws and imprison people for violating them, since one could raise the same objection against such practices as in the case of capital punishment: Won’t a state that has the power to enact laws inevitably use that power to enact laws that expand the state’s power at the expense of natural liberty? Won’t a state that has the power to imprison people necessarily tend toward imprisoning people with increasing arbitrariness or on the ruler’s whims?

In other words: Doesn’t power corrupt? Yes it does, but it does not follow from this truism that no power can be justified.

For if we followed that line of reasoning, then would we not just be sliding into anarchy, i.e., the total delegitimization of all primary government functions? All human moral endeavor involves a risk of abuse, because humans have free will and are often moved by ignorance or malice (which is a species of ignorance). But that cannot, I think, be offered as an argument against moral action, moral rules, moral decision-making, and so on.

One of the decisions humans make is to institute government as a means of protecting themselves precisely from the randomness and danger of a society without any kind of civilized authority to restrain our weakest private tendencies, such as unreflective assertions of “justice” against others without proper rational consideration and consistency — hence the republican concept of “a government of laws and not of men.”

Abortion and euthanasia, by contrast, are in principle exactly the sort of private inconsistency or disproportionality that proper laws are designed to prevent and punish, so I do not really see the analogy with the death penalty, given the difference in context. State funding or performing of abortions is state-sanctioned murder, plain and simple. But not all killing is murder.

That, as of this writing on this particular day, is my overall sense of things regarding the death penalty. These days, however, since I don’t believe there is a government on the planet that has any proper moral authority at all, I offer these arguments more as devil’s advocacy, since I cannot defend any modern state’s use of the death penalty, insofar as I cannot defend much of anything that modern states do, nor their “right” to do it.